When International Norms Get Messy
On the Biden administration’s decision to send cluster munitions to Ukraine.
By Daniel Drezner, Professor of International Politics at the Fletcher School of Law and Diplomacy
A week ago the Biden administration announced its decision to send cluster munitions to Ukraine, which that country had requested for quite some time. Ukraine’s Defense Minister described the decision as a “game-changer.” As the Washington Post writeup explains, “Some of the world’s largest militaries, including those of the US, Russia and China, stock the weapons due to their effectiveness against massed formations of soldiers and tanks. But the move was highly controversial given that the munitions are banned by more than 100 countries because of the danger unexploded cluster bombs pose to civilians.”
Cluster munitions — the U.S. version of them are called dual-purpose improved conventional munition (DPICMs) — are indeed controversial. The Financial Times’ John Paul Rathbone explains why:
Fired from howitzers or rocket launchers, DPICMs drop small grenades, or bomblets, over a wide area where they can remain unexploded for decades after the conflict ends. That deadly legacy, and the devastating effect it has had on civilians, is why many countries now shun them….
Cluster munitions have a dark history. They entered mass production during the cold war, when they were designed for the large-scale bombardment of Soviet tanks and infantry formations.
But they have also been used indiscriminately against civilians. They were used during the Spanish civil war in Republican territory at Guernica, and again in the second world war when German planes dropped SD 2 “butterfly bombs” on Britain.
In the following decades, the US deployed them in Vietnam and in Laos,1
the UK in its battle for the Falkland Islands against Argentina, and Serbia against Croatia.
One of their most heinous deployments came in 2006 in southern Lebanon when Israel was believed to have deployed more than 2mn submunitions. In 60 per cent of cases, those bombs landed near residential areas, according to research by Landmine Action.
Their use during that conflict helped build momentum for a 2008 convention to ban these weapons, ratified by 111 states but not Russia, Ukraine, the US and several Nato members.
The Biden administration’s decision triggered protests from a variety of quarters. U.S. Representative Barbara Lee, the only member of Congress to oppose the invasion of Afghanistan back in 2001, told CNN that, “This is a line I don’t think we should cross.” Other House progressives oppose the move, as does Senator Jeff Merkley, who wrote in the Washington Post that, “Cluster munitions, such as land mines, undeniably offer some battlefield advantages — yet using them would compound the already devastating impact of the war on civilians and Ukrainian troops, with effects lasting for years to come.” Some congressional Republicans also oppose it.
Immediately prior to Biden’s announcement Human Rights Watch warned that, “Ukrainian forces have used cluster munitions that caused deaths and serious injuries to civilians” and that, “Cluster munitions used by Russia and Ukraine are harming civilians now and will leave bomblets behind that will continue to do so for many years.” After the announcement, HRW noted that, “as of July 10, leaders from at least eleven countries expressed concern over the decision: Austria, Belgium, Cambodia, Canada, Germany, Italy, Laos, New Zealand, Norway, Spain, and the United Kingdom. The United Nations secretary-general also made public his concerns.”
Oh, you know who else opposes sending DPICM’s to Ukraine? Former president Donald Trump. According to NBC News’ Rebecca Shabad, “Trump repeated the argument made by many critics — including those on the left — saying unexploded cluster munitions ‘will be killing and maiming innocent Ukrainian men, women, and children for decades to come, long after the war.’”
Opposition is not uniform, however. Beyond the Biden administration, there are a welter of Republicans (and former Republicans) who support the move: Adam Kinzinger, Max Boot, Mike Pence, Nikki Haley. On MSNBC, Secretary of State Antony Blinken explained the decision as compensating for Ukraine’s low stock of regular ammunition: “The stockpiles around the world and in Ukraine of the unitary munitions, not the cluster munitions, were running out, about to be depleted. And so, the hard but necessary choice to give them the cluster munitions amounted to this: If we didn’t do it, we don’t do it, then they will run out of ammunition. If they run out of ammunition, then they will be defenseless.”
You know who else supports sending these weapons? Most military experts. RUSI’s Jack Watling and Justin Bronk offer a robust defense for the use of DPICMs. After noting that the shipment does not contravene international law since none of the parties have signed the 2008 convention, they agree with Blinken about how DPICMs will function as a force multiplier and conclude:
DPICM provision will not only increase Ukrainian military effectiveness against dug-in Russian forces, but will also help alleviate Ukrainian and wider NATO ammunition shortfalls and barrel constraints. Since Russia’s current strategy relies on outlasting Western military support capacity, improving the sustainability of Ukraine’s artillery capabilities would also increase the incentive for Russia to end the conflict. Therefore, the US is justified in providing Ukraine with DPICM to help liberate its territory, which is the only assured means of restoring the right of Ukraine’s civilian population to live in peace.
The FT’s Rathbone notes similar arguments in his explainer.
Military officials and analysts said the advantages of DPICMs in Ukraine far outweigh their drawbacks.
For one, they point out that Kyiv is now fighting the very Russian formations that DPICMs were produced to fight against — and that Moscow has been deploying its own cluster bombs since its full-scale invasion of Ukraine in 2022.
“Those wringing their hands about the US decision should ask themselves why Nato allies such as Estonia, Latvia, Poland, Finland and Romania haven’t signed the convention. It’s because these munitions work against Russian-style armies,” said John Foreman, the most recent UK defence attaché to Moscow….
The danger of unexploded duds remains, but it pales next to the more than 10mn hectares of Ukrainian land contaminated by Russian mines and unexploded shells.
It is worth noting that the U.S. DPICMs being deployed have a much lower dud rate than the cluster munitions that Russia has used in its invasion. According to Undersecretary of Defense Colin Kahl:
The DPICM ammunition we are delivering to Ukraine will consist only of those with a dud rate less than 2.35 percent. Compare that to Russia, which has been using cluster munitions across Ukraine with dud rates of between 30 and 40 percent. During the first year of the conflict alone, Russia fired cluster munitions deployed from a range of weapon systems have likely expended tens of millions of submunitions, or bomblets, across Ukraine.
Kahl’s claims about the dud rate are open to debate.2 Still, the fact remains that the U.S. weapons are far less likely to produce duds than Russian cluster munitions. This move alleviates Ukraine’s artillery constraint in an artillery-dominant conflict. And the humanitarian costs, while a factor, are unlikely to be significant, given that these munitions will be deployed in areas already drained of civilians. Not to mention that these humanitarian costs pale beside what we learn Russia is doing to Ukrainian civilians on a daily basis.
So if I was a staffer making a policy recommendation, I’d recommend sending the cluster munitions for the reasons listed above. But I would not feel great about it, for a couple of reasons.
The first and simplest is that the decision suggests that Ukraine’s counteroffensive is not going to be decisive, and that the conflict will last for quite some time. This is not terribly surprising, and it’s not like Russia is coping very well with these stresses either, but it’s sobering nonetheless.
The second issue is that a norm banning cluster munitions is probably good for the planet. This norm has gained considerable power since 2008. Even if the arguments made above justify sending DPICM to Ukraine, the effect is to degrade that norm. I noted a few years ago that, “For new norms to gain power, they require conformity.” Ukraine deploying cluster munitions is the opposite of that.
In the end, a democratically elected government wants to use cluster munitions on their own soil to defend against an unprovoked invasion. These seem to be the appropriate weapons to send given the terrain and resource constraints. I think it’s the correct call. I’m just not sure it’s the right one.
1 In Laos, U.S. cluster munitions from the Vietnam War are still killing civilians.
2 A related problem is that even if Kahl is correct, that dud rate is still higher than one percent, and Congress has barred the transfer of any DPICM higher than that level (although Biden can use a national interest waiver to bypass that rule).
(This post is republished from Drezner’s World.)